Accardo and Scalzo
[2012] FMCAfam 1290
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ACCARDO & SCALZO | [2012] FMCAfam 1290 |
| FAMILY LAW – Children – parental responsibility – parties’ no longer able to co-parent effectively – equal time no longer in child’s best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA. |
| Goode & Goode (2006) FamCA 1346 |
| Applicant: | MS ACCARDO |
| Respondent: | MR SCALZO |
| File Number: | ADC 3634 of 2011 |
| Judgment of: | Kelly FM |
| Hearing dates: | 8 & 9 October 2012 |
| Date of Last Submission: | 9 October 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Lewis |
| Solicitors for the Applicant: | Robinson & Mason |
| The Respondent: | In person |
ORDERS
All previous parenting orders in relation to the child [Y] born [in] 2002 are discharged.
The previous parenting orders in relation to the child [X] born [in] 1998 continue, save as may be varied in these orders.
The parties share equally in parental responsibility for [Y] and use their best endeavours to reach agreement about major issues affecting her care, welfare and development.
In the event the parties are unable to reach agreement on issues with respect to [Y]’s health or education, the mother shall have sole parental responsibility in that regard.
[Y] live with the mother.
[Y] spend time with the father as follows:
(a)during school terms on each alternate weekend from the conclusion of school Friday until the commencement of school Tuesday, to coincide with the weekends when [Y]’s step-siblings spend time with their father;
(b)in the event the father is working away from Adelaide, then [Y]’s time in the father’s care pursuant to paragraph 6(a) shall take place from 8.00pm Friday until 8.00pm Sunday (or Monday in the event of a public holiday);
(c)during each short school holiday period on a week about basis to continue on from the weekend that [Y] would normally spend in the father’s care and conclude at 5.00pm on the Friday one week following;
(d)for one half of the Christmas school holidays each year as follows:
(i)in December each year on a week about basis to commence on the weekend [Y] would otherwise have been in the father’s care in accordance with the usual rotation and with the week about care to continue until the arrangements that commence on the fifth to last Friday during the school holiday period, in accordance with subparagraphs (ii) – (iv) hereunder;
(ii)for a period of two weeks in January 2013 from 8.00pm on the fifth to last Friday of the school holidays until 8.00pm on the third to last Friday of the school holidays and each alternate year thereafter between the same times;
(iii)for a period of two weeks in January 2014 from 8.00pm on the third to last Friday of the school holidays until 8.00pm on the last Friday of the school holidays and each alternate year thereafter between the same times;
(iv)the children otherwise spend a period of two weeks in the mother’s care during the school holidays, commencing on the third to last Friday in 2013 and each alternate year thereafter and on the fifth to last Friday in 2014 and each alternate year thereafter.
The children shall be in such parent’s care on the last weekend of the Christmas school holidays each year in accordance with the usual alternate weekend rotation to the intent that the children’s alternate weekend time with the father during school terms takes place consistent with the week about care rotation for the other children in the mother’s household.
The parties ensure that [X]’s time in the father’s care pursuant to the orders pronounced 3 April 2012 coincides with the time that [Y] is spending in the father’s care in accordance with these orders.
Notwithstanding any other orders, [X] and [Y] shall spend time with each parent during the Christmas period from 12.00noon on 24 December until 5.00pm on 26 December in each year as follows:
(a)with the father from 12.00noon on 24 December to 3.00pm on 25 December in 2012 and each alternate year thereafter;
(b)with the mother from 3.00pm on 25 December to 5.00pm on 26 December in 2012 and each alternate year thereafter;
(c)with the mother from 12.00noon on 24 December to 3.00pm on 25 December in 2013 and each alternate year thereafter;
(d)with the father from 3.00pm on 25 December to 5.00pm on 26 December in 2013 and each alternate year thereafter.
[X] and [Y] spend time with each party as follows:
(a)with the mother from 10.00am until 5.00pm on Mother’s Day each year; and
(b)with the father from 10.00am until 5.00pm on Father’s Day each year.
Handovers take place by the relevant parent collecting the child or children from school where appropriate.
All other handovers take place by the mother delivering the child or children to the father’s care at the commencement of their time in his care and by the father delivering the child or children to the mother at the conclusion of their time in his care.
Each party notify the other of any illness, emergency or accident involving either of the said children as soon as practicable and in any event within 24 hours and each party is at liberty to visit the children during any periods when the said children may be hospitalised.
Each party is to keep the other informed of their current residential address and telephone numbers.
Both parties are restrained and an injunction is granted restraining them from changing the children’s enrolment from [omitted] College without the prior written consent of the other party.
The father is restrained from applying for a Greek passport for either child.
Each party is restrained from travelling overseas with the children and from removing or attempting to remove either child from the Commonwealth of Australia without first obtaining the written consent of the other parent.
By consent of both parties, the child [X] is permitted to travel to Hong Kong in April 2013 for the purpose of a school trip.
IT IS NOTED that publication of this judgment under the pseudonym Accardo & Scalzo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3634 of 2011
| MS ACCARDO |
Applicant
And
| MR SCALZO |
Respondent
REASONS FOR JUDGMENT
Introduction
[Y] is 10 years old. She and her older sister [X] lived on a week about basis with each of their parents for approximately six years following on from consent orders agreed to by their parents in January 2005. Those arrangements proceeded without any incident until mid-2011 when [X], then aged 13, chose to remain in her mother’s primary care.
[Y] continued to live on a week about basis with each of her parents. On 3 April 2012 the parties consented to further orders which confirmed the week about care arrangements for [Y] and provided for [X] to live with her mother and spend time with her father on alternate weekends, for one half of the school holidays and on special occasions, with all such time to be subject to [X]’s wishes. The mother also retained parental responsibility for [X]’s health and education.
These proceedings
At the time the current orders were made by consent on 3 April 2012, two issues still remained in dispute between the parties, namely the use of a Communication Book and the issue of overseas travel for the children. Both matters were adjourned for a short final hearing to 1 August 2012.
On 27 April 2012 the mother filed an interim Application seeking primary care of [Y], as she became aware that the father had taken up a [occupation omitted] position outside of Adelaide which meant he was unavailable to care for [Y] during the school week.
The father did not see any need to vary the interim care arrangements as he considered his long term partner was more than capable of caring for [Y] whilst he was away for five days in [P]. However, Federal Magistrate Cole took a different view. On 11 May 2012 His Honour suspended the week about shared care regime for [Y]. His Honour then made further interim orders providing for [Y] to spend time with her father on alternate weekends from Friday evening until Sunday evening, taking into account Mr Scalzo’s need to travel to and from [P].
The proceedings were adjourned for further consideration to 13 June 2012 but the parties were unable to reach agreement regarding [Y]’s care arrangements. Accordingly the hearing on 1 August 2012 was vacated and the parenting dispute was listed for a two day hearing on 8 and 9 October 2012. A family assessment was also ordered, to be prepared prior to the trial listing.
The mother’s interim Application was formalised by way of a further Amended Initiating Application filed by her on 16 August 2012.
In August 2012 the father and Ms B moved in to live in a spacious caravan based at the [M] Caravan Park. The mother considers the father’s accommodation is inappropriate as a primary residence for their 10 year old daughter [Y], even if the father is living in Adelaide.
Initially Ms Accardo sought simply to confirm the existing interim parenting orders, but at trial she also sought sole parental responsibility for decisions regarding [Y]’s health and education, similar to the orders made in April 2012 regarding [X]. Ms Accardo argues that the parties are no longer able to communicate effectively and equal shared parental responsibility has become unworkable.
The father has not filed any formal Response but his position has been clear throughout the proceedings and conveyed through Affidavit material. He sees no need to vary the orders regarding [Y]’s care, whether he is employed in Adelaide or elsewhere, as his partner is equally capable of caring for his daughter, if he is unavailable. He seeks to continue the existing order for shared parental responsibility.
The hearing
The hearing proceeded before me on 8 and 9 October 2012. The mother relied upon the following documents:
a)her further Amended Application filed 16 August 2012;
b)her trial Affidavit filed 3 October 2012;
c)Affidavit of the mother’s partner, Mr H filed 3 October 2012.
The father relied upon his trial Affidavit filed 5 October 2012. In addition the Court allowed Mr Scalzo to refer to his earlier Affidavits filed 15 November 2011, 19 January 2012, 23 April 2012 and 24 May 2012.
Both parties gave evidence and were cross examined. Mr B, a regulation 7 family consultant, prepared a family report dated 3 September 2012. His report was received into evidence and Mr B was also available for cross examination. The father did not seek to cross examine the mother’s partner, Mr H.
I am satisfied both parties gave their evidence honestly and to the best of their recollection. However, as is so often the case in this Court, both parties tended to give their evidence in such a way as to portray the other party in a negative light and to portray themselves in the best possible light.
Mr B was cross examined by both parties. He gave his evidence in a consistent, professional manner and his evidence provided considerable assistance to the Court.
Legal principles
In accordance with s.65D of the Family Law Act 1975, the Court is empowered to make such parenting order as it thinks proper subject to certain limitations set out in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses on the importance of parents having a meaningful role in children’s lives, upon the need to protect children from harm, and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. The two primary considerations are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply, or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the children’s best interest to spend equal time, or substantial and significant time, with each parent.
The dispute before the Court is unusual to the extent that the parties have previously demonstrated their capacity to share their parenting responsibilities in a co‑operative and child focussed manner.
Ms Accardo and Mr Scalzo shared parental responsibility for over six years, until the orders of 3 April 2012 allocated certain aspects of parental responsibility for [X] to Ms Accardo alone. In addition, the children have lived on a week about equal shared parenting basis with both of their parents for a number of years, again the changes that occurred earlier this year.
That past history is a very relevant factor in assessing whether orders for equal shared parental responsibility and equal parenting time will be in [Y]’s best interests. However, the Court’s decision must be based on all of the evidence presented during the trial. The fact that the parties have previously managed to implement a shared parenting regime does not automatically mean that such an outcome will continue to be in her best interests.
Section 60CC – primary considerations
Fortunately there are no allegations of abuse, neglect or family violence in this matter. Both parties acknowledge that [Y] enjoys a meaningful relationship with her other parent and support that relationship continuing. However they are in stark disagreement about how [Y]’s time with each parent should be structured and whether they can continue to share parental responsibility in a way that will operate to [Y]’s benefit.
These issues will be investigated further in my discussion of the relevant additional considerations set out in s.60CC(3).
Section 60CC(3) – additional considerations
(a) [Y]’s views
[Y] was interviewed together with her older sister [X]. Mr B did not consider either child had been unduly influenced by either party. His report provides some very useful insight into [Y]’s views. [Y] is reported as seeking week about time with both parents. Mr B noted [Y] said:
“… it was only fair and she wanted both to be happy. She did not have a problem with being separated from [X] or her other siblings. This way both parents would be treated fairly and [X] could have 1:1 time when her siblings and [name omitted] had time with their other respective parents”.[2]
[2] Family Assessment Report dated 3 September 2012 at para.85
Mr B noted that both children love their parents and [Y] is reported as enjoying a positive relationship with both Mr H and Ms B. Significantly, both children also reported a wish for their parents to “be civil towards each other again”[3].
[3] Ibid at para.81
(b) the nature of the children’s relationship with each parent and other significant persons
The children were observed interacting with each of their parents and their respective partners. Mr B noted that [Y] looked “mildly anxious and pensive”[4] during her interaction with her mother and extended maternal family whereas she was described as appearing “more relaxed and animated”[5] during the interaction with Mr Scalzo and Ms B.
[4] Ibid at para.91
[5] Ibid at para.95
When questioned about this in cross examination, Mr B did not place great weight upon this difference. He noted that [Y]’s session with
Ms Accardo was the first time she had been in the observation room. He considered that [Y]’s demeanour could simply have been her response to the “fish bowl” effect and that she was more relaxed in the situation by the time of the second period of observed interaction with her father. He did not identify any issues or concerns regarding [Y]’s interaction with either parent and rejected any conclusion that [Y] enjoyed a better relationship with one parent over the other.
I am satisfied that [Y] enjoys a warm and loving relationship with both of her parents. She also enjoys a significant sibling relationship with her sister [X], despite the different parenting arrangements in place since mid 2011. [Y] seems particularly at ease with each of her step-parents, Ms B and Mr H and I am confident that she also enjoys positive relationships with her step-siblings and her younger brother.
Mr B concluded that both [Y] and [X] enjoy a positive and secure attachment to Mr Scalzo[6]. Clearly, the change in parenting arrangements for [X] has not undermined the strength of her relationship with her father.
(c) willingness and ability of each parent to facilitate the child’s relationship with the other parent
[6] Ibid at para.96
Both parties have demonstrated their willingness and ability to support the children’s relationship with the other parent in past years. Notwithstanding the difficulties that arose between the parties regarding [X]’s parenting arrangements across 2011, the mother continued to support a week about parenting arrangement for [Y]. She did not seek to alter those arrangements until the father’s changed circumstances came to light this year. This demonstrates the mother’s willingness to support [Y]’s relationship with the father. Although
Ms Accardo is now seeking to vary the week about parenting arrangement on a final basis, that does not mean she no longer supports or respects [Y]’s relationship with her father.
The mother’s application to vary the week about care regime for [Y] came about when she discovered the father was not present in Adelaide to provide primary care for [Y]. In those circumstances, Ms Accardo considers [Y] should be in the primary care of one of her parents, rather than a step-parent.
It is one thing for a step-parent to take on a parenting role within the usual structure of family life. It is another thing entirely for a step-parent to assume the primary parenting role because of the unavailability of the child’s parent, as was the situation for Mr Scalzo who was absent for five of the seven nights [Y] would otherwise have been in his care.
Mr Scalzo continues to promote week about shared care for [Y] and to that extent is clearly supportive of her relationship with the mother, despite his criticism of Ms Accardo’s parenting.
Both parents need to remember that the present adult conflict can also impact upon [Y]’s emotional wellbeing. Both parties need to ensure that they do not behave in ways that inadvertently undermine [Y]’s sense of security within her relationship with her parents and within her emotional world generally.
(d) the likely effect of any changes including the likely effect of any separation from either of the child’s parents or other family members
The Court has an unusual level of insight into the various parenting options that could be considered for [Y]. For example, we know that week about shared parenting has worked very successfully for [Y] in the past. Indeed, it is likely that parenting arrangement would have continued without interruption, were it not for the father’s decision to take up employment outside of Adelaide.
We know that Mr Scalzo and Ms B travelled away overseas for approximately four months in 2010 and that the week about parenting arrangement recommenced upon their return. I am satisfied that [Y]’s relationship with her father resumed without any difficulty at that time.
Based on Mr B’s report and evidence, we know that [X] continues to enjoy a strong relationship with her father, even though she now spends less time in his care. We also know that [Y]’s relationship with the father has not been undermined by the present parenting arrangement even though she is spending only two nights per fortnight with him during school term time.
[Y]’s relationship with both parents is strong and secure. I am confident that she will continue to enjoy a meaningful relationship with both of her parents, whether spending two nights per fortnight in their care, seven nights per fortnight, or some other number of nights.
(f) parental capacity to provide for [Y]’s needs, including her intellectual and emotional needs;
each party’s attitude to [Y] and to the responsibilities of parenthood;
Section 60CC(4) the extent to which each party has fulfilled, or failed to fulfil his or her responsibilities as a parent
It is useful to discuss these considerations together as they are inter-related.
I am satisfied both parents have the capacity to provide for [Y]’s needs, both in a day to day sense and longer term. The parties are both qualified [omitted] and clearly support their children’s educational achievements. During the six years of successful shared parenting, they demonstrated an appropriate attitude towards their parenting responsibilities and fully participated in making decisions about their children’s care. They managed to introduce new partners and, in
Ms Accardo’s case, step children and a younger brother, in such a way that has added to the richness of [Y]’s emotional life rather than create any sense of insecurity or displacement. This is a credit to both parties.
They are to be commended for the level of flexibility they demonstrated during their years of shared parenting. One such example is Ms Accardo’s response when the father travelled overseas from November 2010 until March 2011. Her willingness to assume full time care of the girls and to re-instate the week about care regime upon
Mr Scalzo’s return reflects the positive co-parenting dynamic that existed at that point in time.
In hindsight, this trip may have had unexpected repercussions within the family dynamic, particularly for [X]. It may be that living in one parent’s household for that extended period gave her a different perspective about her living arrangements, which was ultimately reflected in her decision to move into her mother’s primary care a few months later.
I am satisfied that both parties continue to fulfil most of their parenting responsibilities properly. However, the extent to which they are failing to manage their co-parenting relationship is a significant concern.
The parties’ failure to communicate effectively
[X]’s decision to live with her mother seems to have had a dramatic impact upon the co-parenting dynamic between the parties. While they attempted mediation, that effort was quickly followed by the father’s contravention application. From that point on, the parties’ communication and co-operation has effectively disintegrated.
From the father’s perspective, he considers the mother manipulated [X]’s care arrangements and is now taking the same approach regarding [Y]. He considers the mother is “constantly finding new areas of conflict”.[7] From the mother’s perspective, the father has become increasingly dogmatic and rigid in his approach to co-parenting.
[7] Father’s Affidavit filed 5 October 2012.
The parties were unable to negotiate effectively about a change in [X]’s living arrangements. They were unable to come to any agreement or compromise in relation to her health care. The mother felt the father was dismissive of [X]’s health needs. Mr Scalzo was convinced that the mother has exaggerated these concerns in an effort to undermine [X]’s sense of confidence in his care.
Ultimately this issue was resolved, not by better communication and co‑operation between the parents, but when the Court allocated parental responsibility for [X]’s health to the mother. To do otherwise would have seen the parties locked into escalating conflict. Nonetheless, Mr Scalzo remains concerned that the mother is exaggerating [X]’s symptoms and that [X] is now learning to manipulate it to avoid activities or responsibilities that she finds too demanding.
Mr B noted that the parties’ inability to communicate in relation to [X]’s health now seems to be extending to [Y], when the parties recently found themselves in conflict over her podiatry appointments. The mother gave evidence that Dr E is a qualified paediatric podiatrist who has treated [Y] for some years. The father says that Dr E cancelled an appointment and therefore he chose to take [Y] to see a general podiatrist closer to his home address. This seems a surprising decision. It is difficult to see why the father did not simply arrange another appointment with Dr E, rather than taking her to a new podiatrist. The journey from his home in [M] to Dr E’ rooms in [omitted] is hardly onerous.
To the mother’s credit, she has taken steps to resolve this issue in the future and has now located another suitably qualified paediatric podiatrist, closer to [M].
There are other examples of the breakdown in co-parenting communication. The father does not appear to have made any effort to inform the mother of his plans to pursue employment away from Adelaide, despite the impact his decision would have upon their daughter [Y]. Ms Accardo only became aware of this significant development when informed by [X].
The email exchange regarding the children’s participation in a wedding with their mother on the weekend of 30 September 2012 is also concerning.[8] What began as a relatively straightforward exchange of emails, quickly deteriorated. Perhaps if the mother had provided more detail in her original email about the extent of activities across the weekend, the situation may not have devolved as it did. Nonetheless the father’s eventual response, telling the mother to “stop whining”, was particularly unhelpful.
[8] Mother’s Affidavit filed 3 October 2012
Both parties now tend to close off communication, or adopt an oppositional response, rather than looking for ways to co-operate. The parties’ increasing inability to communicate effectively raises real concerns about the viability of shared parental responsibility, or the resumption of week about shared care for [Y].
The father’s accommodation arrangements
The mother is particularly critical of the father’s current accommodation. The father and Ms B moved into a caravan in the [M] Caravan Park in August/September 2012. Mr Scalzo gave evidence that he and Ms B intend living in the caravan on a permanent basis, even when he is working back in Adelaide.
We have no information about [Y]’s views as the father had moved into the caravan just prior to the assessment with Mr B. Both girls commented that it is “too early” to decide whether or not they liked life in the caravan. Ms Accardo does not consider a caravan provides an appropriate standard of accommodation for [Y], even less so if [Y] resumes a week about parenting arrangement. Mr B also expressed concern about the suitability of caravan accommodation, even a comfortable, spacious caravan, as a primary home base for a young girl.
Mr Scalzo provided a great deal of information regarding the quality and size of the caravan and provided photographs showing the layout and facilities.[9] The photographs demonstrate that it is a large and comfortable caravan. I accept that the father has taken steps to ensure the caravan is comfortable, safe and secure for the girls. They are able to draw an internal screen across their bunks and private bathroom facilities, to provide them with some privacy.
[9] Exhibit F1
The caravan has limited table space for homework and so on, but
Mr Scalzo also pointed to a spacious annexe that is permanently attached. The annexe is heated, carpeted and furnished. It clearly adds to the available living space.
I do not accept that the overall environment of the Caravan Park is inherently unsafe, particularly as the girls are not required to access the general amenities block. However, I agree that caravan accommodation is less than suitable as a primary home for a ten year old child. Despite the Caravan Park regulations tendered by Mr Scalzo,[10] a caravan park is inherently a more public and less controlled environment than a suburban back yard.
[10] Exhibit F8
From the photographs, there appears to be little personal space available to [Y] and [X] around their bunk bed area, beyond cupboards for clothing. Mr Scalzo argues that the caravan is equivalent to a small modern home, but it seems to me foldout screens are very different to doors and walls (even plywood doors and single brick walls), in terms of noise reduction and overall privacy.
The children’s hygiene facilities open directly onto their sleeping area. Those facilities are screened off from the adults’ sleeping area, but that does not address the children’s need for privacy between themselves. What may be acceptable during a family holiday does not necessarily reflect an appropriate standard of accommodation for two adolescent or near adolescent girls, even taking into account [X] only spends alternate weekends with her father.
Mr Scalzo does not appear to have considered whether his decision to live in a caravan may have any social implications for [Y]. While [Y]’s young friends may find it enjoyable, even exciting, to have a sleep over in her caravan, their parents may be more concerned, even judgmental, about such an arrangement. They may be concerned about their children’s safety in the park environment. Such reactions may be ill informed, but are hardly unexpected.
The caravan clearly meets the needs of Mr Scalzo and Ms B, but I am not satisfied it provides an appropriate level of primary accommodation for [Y], were she to return to week about shared care.
(g) [Y]’s maturity, sex, lifestyle and background
[Y] is ten years old. Mr B noted that [Y] was young for her age which affected his assessment of the weight to be placed upon her views. He also made the following comment:
“…from a developmental stage it is important for her to keep both parents happy hence her construct of what is fair and just. This does not necessarily mean that equal share time spending is necessarily in her best interests.”[11]
[11] Family Assessment Report dated 3 September 2012 at para.106
Mr B discussed this further during cross examination. [Y]’s stated wish for week about time was in the context of it being “only fair and she wanted both to be happy”.[12] He noted that developmentally, children at this age are often very focussed on what is “fair”, drawing an analogy with children’s play patterns, where children often place particular emphasis on developing rules to ensure all players have equal turns and so on. He considered her wishes should be viewed within that developmental context.
[12] Ibid, para.85
I take this evidence into account when considering the weight to place upon [Y]’s views. I conclude that [Y]’s views should be given considerable weight, but are not decisive.
Remaining s.60CC(3) considerations
The parties live in close proximity to each other and there are no practical difficulties in implementing any specific parenting arrangement, beyond the difficulties associated with the father working away from Adelaide.
I do not consider the remaining considerations affect my assessment of [Y]’s best interests.
Conclusion
Given the parties’ past history of successful shared parenting, the presumption in favour of equal shared parental responsibility clearly applies in this matter. However, the evidence before me regarding the deterioration in the co-parenting relationship leads me to conclude that an ongoing order for equal shared parental responsibility is no longer in [Y]’s best interests.
Mr Scalzo argues that the mother has tried to manufacture a situation where the co-parenting communication appears more dysfunctional than it actually is, in order to support her preferred outcome. This ignores Ms Accardo’s past commitment to shared parenting, an attitude which continued upon the father’s return from his overseas trip and continued in relation to [Y], even after the parenting arrangements for [X] changed.
I reject any suggestion that the mother is exaggerating her concerns. Based on the evidence presented by both parties during the trial, I am satisfied that the level of co-operation that previously existed between them no longer exists.
The father maintained a critical tone about the mother both during his interviews with Mr B and during his time in the witness box. His criticisms of the mother’s parenting seem at odds with his view that she is nonetheless capable of providing week about care for [Y].
In addition to the deterioration in the co-parenting relationship, there appears to be a greater disparity in the attitudes and values that each party brings to their parenting responsibilities. The father believes the mother allows [X] to dictate her own school attendance; the mother rejects that. The mother believes the father’s choice of accommodation is inappropriate; the father disagrees. While these may seem modest areas of dispute at one level, I consider they reflect a growing disparity in the parties’ attitudes to each other and to their parenting responsibilities.
I conclude that the mother’s proposal regarding parental responsibility will reduce the potential for conflict between the parties in the future. Obviously the father will continue to play a significant role in [Y]’s life and the parties should consult about major issues affecting [Y]’s care. However, in the event the parties remain deadlocked about issues relating to [Y]’s health or education, I conclude that the mother should exercise parental responsibility in that regard. I am satisfied that she will exercise that responsibility appropriately and that she will not simply disregard or ignore the father’s views.
Should [Y] resume living week about with each parent?
[Y] made it clear to Mr B that she wants to reinstate the week about parenting arrangement. She has expressed this view consistently, both to Mr B and during an earlier interview with a family consultant in November 2011. [Y] had no difficulty continuing to live week about with each parent when her sister [X] commenced living with their mother.
The question is whether this arrangement is still in [Y]’s best interests.
The mother argues that it is not simply that the co-parenting relationship has become dysfunctional. She argues that from her perspective, [Y] is more settled and has been progressing better over the last 6 months, than previously.
The father does not accept the mother’s conclusion regarding [Y]. However, he did not really challenge the mother’s evidence in this regard, beyond pointing out that he was also contributing to [Y]’s extra-curricular activities, both financially and by supporting her attendance at classes and so on. The father remains convinced that the mother’s actions are motivated out of spite or financial greed rather than any real focus on the children’s bests interests.
Mr B cautions the Court not to place too much weight upon [Y]’s views, given her relative immaturity. Of more concern to Mr B however, was the deterioration within the co-parenting relationship.
Mr B discussed the factors that lead to successful shared parenting outcomes for children.[13] He noted that in the absence of a co-operative, collaborative parenting approach, shared parenting arrangements can lead to adverse outcomes for children. Mr B went on to comment that there can be significant detrimental consequences for children who are caught in the crossfire between their parents. He described how children may become tense and forgetful. They may start to worry about whether one parent or the other should attend a particular event or who might be responsible to pay for their participation in a particular activity.
[13] Family Assessment Report at para.102
Mr B noted in his report, and again in cross examination, that [Y] was unhappy about the level of conflict between her parents. He went on to conclude that the current level of acrimony between the parties was such that he would not recommend reinstating week about shared care, even if the father was living full time in Adelaide in the future.
Sadly, the parties are now in a reactive parenting relationship rather than a co-operative parenting relationship. Mr B refers to Mr Scalzo’s “propensity to look for differences”, a criticism that may well be attributable to both parents to some extent.
This situation does not auger well for [Y]’s emotional welfare if the parties were to resume a week about shared parenting regime. On the contrary, it seems likely that her parents’ inability to communicate may leave [Y] caught in a state of anxiety and uncertainty about the day to day practicalities of her parenting arrangements.
While I do not consider week about time is appropriate, I note that [Y]’s wish to resume week about care indicates a desire for more time with her father. It is clear that she is used to having both parents involved in her day to day routines. I see no reason why that should not continue to some extent, assuming the father is indeed based in Adelaide and available.
While the father’s caravan is not a suitable primary home base during school term time, it is nonetheless sufficient for shorter stays, such as an extended alternate weekend care regime. However, this will be dependent upon the father’s employment being based in or near Adelaide, to the intent that he is generally available to care for [Y] each night she is in his care. I conclude that [Y] should spend time with her father during school term time from Friday afternoon until the commencement of school Tuesday on alternate weekends. However, if the father takes up employment away from Adelaide, the present parenting arrangement should continue, from 8.00pm Friday until 8.00pm Sunday.
The parties have reached agreement in relation to the care arrangements for both girls during the Christmas school holidays each year and I will set out those consent orders again, for the convenience of the parties. I will also repeat earlier consent orders regarding school holidays, special occasion time and other parenting orders that apply to both children, again for the convenience of the parties.
The parties have also resolved the issue of overseas travel, to the extent that they will each be restrained from travelling overseas with the children without first obtaining the written consent of the other parent. The father also agrees that he will not apply for a Greek passport for either child.
I now make orders as published at the commencement of these reasons.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 4 December 2012
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